Sunday, January 29, 2012

Police can lie to suspects to get a confession; that is well established law. But what, exactly is a lie? As it turns out, that was well established law, too, at the time Austin PD officers allegedly crossed the line to hoping Mark Alan Norwood would confess to the murder of Debra Baker. Austin police "doctored" a forensics report to try to get Norwood - now the prime suspect in the Christine Morton murder case for which her husband, Michael was falsely convicted and spent 25 years in prison - to confess to murdering Baker, reports Tony Plohetski this morning in the Austin Statesman ("Austin police use of doctored DNA report in interrogation raises questions," Jan. 29):

As his defense lawyers were working to free Michael Morton from prison because of a wrongful conviction that raised questions of prosecutor misconduct, Austin police doctored a crime lab report to use during the interrogation of a suspect in a related case, the American-Statesman has learned.

Austin police officials and Travis County prosecutors confirmed last week that they are looking into the techniques investigators used as they questioned Mark Alan Norwood during lengthy interviews in September.

The detectives used what Police Chief Art Acevedo called "an investigative prop" when seeking information from Norwood in the 1988 bludgeoning death of Debra Masters Baker in her home.

Officials at the state crime lab told Austin police cold case investigators that DNA tests had linked Norwood to the crime scene, officials said. But investigators did not yet have the written report, so they took a DNA report from a separate case, altered it to indicate it was from the Baker case and showed it to Norwood during the interrogation, officials said. Acevedo said the scientist who conducted the test also had authorized them to share the result.

Norwood didn't confess and has not been charged in Baker's death but remains a suspect, according to Austin police.

Norwood's lawyer and legal experts said they do not think the officers' actions will impede the case because Norwood did not confess, but several raised concerns about whether the detectives' actions may have violated laws on evidence tampering.

So if cops can lie, what's the problem here? Well, altering documentary evidence goes a bit beyond lying, and is clearly prohibited under not just one but two separate felony statutes. Thus, Chief Acevedo's artful attempt to re-frame the document as "an investigative prop," rather than an actual crime-lab report doctored to suit investigators' needs.

Lying to suspects, while clearly legal, isn't always a great idea and can have its own harsh, unintended consequences. Nobody should know that better than Austin PD, which has a long, inglorious history with false confessions, most famously with Christopher Ochoa's and Richard Danziger's false convictions, not to mention with the botched Yogurt Shop murders investigation, in which details of the crime scene were leaked and police obtained more than 50 false confessions, likely including the men they prosecuted for the crime. APD has a track record of reacting in a frenzy in high-profile cases to put maximum pressure on a suspect. (Witness Chief Acevedo's congratulatory comments to the community after public pressure apparently prompted a suspect's suicide: "I personally want to thank the people of Austin," he said. "We put pressure on this person with that community outpouring.")

Against that backdrop, doctoring lab reports to manipulate suspects strikes Grits as par for the course at APD, and indeed Chief Art Acevedo essentially defends the practice as well as the integrity of the investigators. Plohetski notes that:

Police are generally allowed to deceive suspects during interrogations in an effort to get a confession, but the creation of a false government document to use in such interviews raises legal questions. A March 2010 decision by the Texas Court of Criminal Appeals threw out the confession of a man in San Antonio after a detective obtained the statement by using a falsely created report showing the suspect's fingerprints were on a gun used in a homicide.

Tony might have cited not only the 2010 Court of Criminal Appeals case throwing out a confession when it was obtained with a fabricated document, but also Texas' Penal Code Sec. 37.09, which defines felony evidence tampering, in relevant part, as when someone "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding." Under that provision, evidence tampering is a third degree felony garnering as much as 2-10 years in prison, plus assorted fines, fees, etc..Or prosecutors could potentially apply Sec. 37.10 of the Penal Code, Tampering with a Government Record, which applies a similar penalty to anyone who "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." Allegedly making up a phony lab report for use in an interrogation (one assumes they did it "to affect the course or outcome of the investigation") tracks almost exactly the language of activity made illegal under the Penal Code.

It should be said, these were not rogue detectives but instead the activity in question is apparently routine departmental pattern and practice. Indeed, the detectives in question, reports Plohetski, were ordered by their supervisor to manufacture the document.

The story quotes County Attorney David Escamilla saying he will take any appropriate action, but if these two penal code provisions are indeed the applicable law, one would expect it prosecuted in district court as a felony by DA Rosemary Lehmberg, whose office commendably uncovered the alleged misconduct. However, reports Plohetski, Lehmberg asked Escamilla "to oversee the inquiry because of the assistant district attorney's involvement in the case." (Grits hopes that doesn't mean he'll limit the investigation to misdemeanors; I don't understand why the prosecutor's role explaining the law to APD would require the DA Office's recusal.)

Surely the relevant felony statutes were taught to investigators during their training (if not, you can be sure ignorance of the law, in this case, will be treated by the civil service system as an excuse). Both existed long before the 2010 court ruling, though Chief Acevedo acts in the story like this is something new under the sun that would have changed departmental practices had he known about it. Either way, it's the actual fabrication of the document that may get detectives in trouble (or, IMO more likely, not). If detectives had told Norwood a lie about the report's contents and he believed it, they'd fall well within the realm of legality, whatever one may personally think about the tactics of deception in interrogations. But they allegedly went several steps further.

Whatever excuses Chief Acevedo wants to make for his detectives, the law limits them just like everybody else. And if it turns out detectives were never trained on these longstanding penal code provisions, much less recent court rulings governing Texas interrogations, he and his command staff may need to find a mirror to accurately place blame for Austin PD instructing its detectives to commit felonies in the course of a cold-case homicide investigation.

17 comments:

rodsmith
said...

well considering the moment they changed that document they comited the felony of fraud and misuse of court docutments they became FELONS just as bad as the individual they were talking to MAYBE was since he has not been charged or convicted.

as for this idiot police chief since he now knows what they did and approves...guess what numnut your now an accessory AFTER THE FACT...makes you a felon too.

pity the state police or fbi doesn't have the cuts to swoop down and arrest the buch. But of course THEY DO THE SAME THING DAILY!

Moses says, "Thou shalt not bear false witness," unless of course you're a policeman investigating a suspect. A lie is a lie is a lie, whether you're a policeman, a drug dealer, president, or presidential candidate. A lie is a lie, except under some special law. Somehow I don't think God recognizes that special law, however many courts may.

rodsmith: Do you really think this makes them "just as bad as the individual" suspected of BRUTALLY MURDERING at least two women? They did have test results proving it was his DNA, they just didn't have it on paper yet. I'm not condoning what they did, only pointing out that it is considerably different than creating a document that shows someone's prints were at a scene when they really weren't. Even doing that does not put them on the same level as someone who bludgeons women to death.

Thank you, 1:11! It's nice to know there are a few sane people on here. I'm sure some of these people would also have a problem with the killing of Osama bin Laden because the Special Forces relied on covertly obtained intelligence and went in under cover of darkness. Do they think the criminals are a bunch of saints who just readily confess when asked "did you do it?" Give me a break!

On a side note, remember a while back how everybody (it seemed) believed that state crime labs separate from police agencies (such as Houston PD, Pasadena PD, etc.) would prevent collusion and create a climate of anonymity that would prevent law enforcement agencies from having undue influence on the scientific/lab side of the house? After reading how the state lab allowed this level of interaciton to happen, you can pretty much throw that theory out the window!

If the lab was going to report that anyway, 3:11 and 4:51, why risk the investigation by committing a felony instead of just telling him what the lab said? Why fashion a lie when the truth would do just as well?

It goes back to training. If they were trained not to do this, as they should have been, then they knowingly violated the law. If they were trained (and in this case ordered) to do it, or at least taught that such fabrication is allowed, then the department has been promoting a tactic which - even if you care to justify it because of the heinousness of Norwood's alleged crimes - clearly violates Texas' longstanding black-letter law on the question.

Aside from the heinous fundamental problem of allowing those in power to lie (not to mention capture & torture); if only documents cannot be lied upon, then that explains why the courts & agencies try so hard to avoid paperwork. If they can keep it verbal--e.g., phone interviews, "trial" by A.D.A in the back room--then you'll never know how much they're lying. Whatever happened to holding elected officials (and their willing henchmen) accountable and to a higher standard?

OK, folks, let's get real here. First, I am generally no huge fan of police and am quick to call them on misdeeds. This was not such a case. I got the full briefing from Lemberg on this last week. These detectives knew it was OK to lie,etc to enhance their interrogation. They did not know about the fairly new ruling about documents. The balance is that anything they lied about will come out in court and maybe get that confession thrown. The law is that they cannot make up a document for such use. But 1) they already had confirmation from the lab of the positive match, just not yet the official document 2) they got no confession. No harm, no foul. This was an honest mistake by good cops, but that ruling on faked documents is pretty new. APD will add this to training for all officers.

They are NOT felons (You have to be charged and convicted for that title) nor is Acevedo at any risk. I, too, have qualms about lying to get confessions and hope it would be a last resort. But liberal as I am, I know there are plenty of folks out there who would do me harm. I want my police to be aggressive in finding the truth. Note- TRUTH.

Phillip baker, there is a "BIG" difference between making-up a DNA lab report and taking an official DNA lab report and tampering with it.

The lab report they alter was an official government record, so now the only question is whether this is a second or third degree felony, and don't forget,ignorance of the law is not defense to a violation.

Phillip Baker writes, "They did not know about the fairly new ruling about documents."

Please go read the two statutes linked in the text of this blog post. They both a) predate that court ruling by many years and b) do not require a court ruling to interpret. Anyway, why didn't APD know about the 2010 ruling? Isn't that a training failure by management? The ADA knew.

Anyway, I did not say these officers are "felons" - that's for a court to decide, and in the post I predicted there would be no prosecution or even in-house discipline. However, it is a "felony" when someone "makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding."

If you'd like to argue that there should be exceptions to evidence tampering laws for police to do this, fine. But surely you'd also agree that - on its face - the evidence tampering statute appears to speak directly to using a "document" with "knowledge of its falsity and with intent to affect the course or outcome of the investigation," which by published accounts is exactly what happened in this case?

Bottom line, a civilian who did the same thing would be prosecuted and the statute doesn't say "unless you're a police officer." Is that what should or will happen here? Perhaps not, but so what? The primary point is nobody at APD from the bottom to the top had a friggin' clue.

"Anonymous said... rodsmith: Do you really think this makes them "just as bad as the individual" suspected of BRUTALLY MURDERING at least two women? They did have test results proving it was his DNA, they just didn't have it on paper yet. I'm not condoning what they did, only pointing out that it is considerably different than creating a document that shows someone's prints were at a scene when they really weren't. Even doing that does not put them on the same level as someone who bludgeons women to death.

1/29/2012 03:11:00 PM"

i STILL say they were WORSE! unlike him. THEY are supposed to be guardian's of the law and have taken an OATH to UPHOLD the law and PROTECT us all. Sorry i can't see how your UPHOLDING the law when 80% of what comes out of your mouth is BALONEY! if not down right ILLEGAL.

as for them being felons! maybe i should have said UNCONVICTED FELONS!

is that better!

and i hope and pray the former u.s. supreme court justices who gave them this completley UNCONTROLED power are rotting in hell right now!

"Bottom line, a civilian who did the same thing would be prosecuted and the statute doesn't say "unless you're a police officer." Is that what should or will happen here? Perhaps not, but so what? The primary point is nobody at APD from the bottom to the top had a friggin' clue."

Sorry i DON'T CARE what your job. What costume you wear if it's illegal for me...it's illegal for those who GET THEIR AUTHORITY FROM ME!

Southern, daily and good for you

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